Explanatory Statement
Civil Aviation Regulations 1988
Direction — flight time limitations for helicopter mustering operations
Legislation
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Regulation 5.55 of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may give directions to the holder of a flight crew licence, or to an aircraft operator, about matters relating to the regulation of flight time. These matters include the number of hours that a person may fly in any period, the rest periods that must be taken and the circumstances in which a person must not fly or undertake other duties associated with his or her employment.
Regulation 210A of CAR 1988 is intended to replace regulation 5.55. It will come into effect with Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) which deals with flight crew licensing. It applies to flight crew members. It deals with the same type of matters as regulation 5.55, including the length of a tour of duty, the length of time on reserve that may be undertaken by a flight crew member, rest periods that must be taken, and circumstances in which a licence holder must not fly or undertake any other duty associated with his or her employment.
Exercise of a power under a provision before its commencement
Section 4 of the Acts Interpretation Act 1901 (the AIA) allows the exercise of a power under a provision before the commencement of the provision in order to make an appointment or an instrument. The power may be exercised as if the relevant commencement had occurred.
Under subsection 4 (4) of the AIA, the exercise of the power does not confer a power or right or impose an obligation on a person before the relevant commencement except so far as necessary to bring the appointment or instrument into effect.
Under subsection 4 (6) of the AIA, a single instrument may be made before the commencement of a provision, partly in reliance on section 4 (as with the new regulation 210A) and partly under an existing power (as with regulation 5.55). This enables an instrument to continue in effect when the existing power is repealed and the new regulation that is cited comes into effect.
Under subsection 33 (3) of the AIA, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
This direction has been issued under section 4 and subsection 33 (3) of the AIA and regulations 5.55 and 210A of CAR 1988. It provides a uniform set of rules applicable to operators engaged in helicopter mustering operations. It provides an alternative to the standard limitations and requirements in Civil Aviation Order 48.1 (CAO 48.1) and will apply to any operator who notifies CASA in writing that he or she wishes to comply with it.
It replaces instrument CASA 341/12 which was also issued as an alternative to CAO 48.1. CAO 48.1 was replaced after CASA 341/12 was made and the remaking of CASA 341/12 is intended to avoid any possible doubt as to the previous instrument’s validity.
There have been some drafting changes, in particular the adoption of terms taken from the new CAO 48.1 and the addition of a note after the definition of flight time in section 1 for clarification only. The new instrument also saves choices made under the previous instrument to opt for the helicopter mustering limitations. It clarifies that the validity of the instrument is not affected by CAO 48.1.
Two sections which dealt with restrictions on the carriage of passengers and the placement of a warning placard relating to the carriage of passengers have been omitted. The carriage of passengers is already dealt with in CAO 29.10 which deals with the conduct of aerial stock mustering operations. To avoid uncertainty, it is considered that the instrument should deal only with flight times and duty times, and CAO 29.10 can deal with the other aspects of the operations.
The instrument deals with the maximum number of hours that a pilot may fly in any given period and the duty free periods that a pilot is required to have. It also deals with the circumstances in which a pilot must not fly or in which an operator must not require a pilot to fly. It also requires the accurate recording of flight time and duty time and of helicopter flying time.
The instrument sets out 2 sets of flight time limitations, depending on whether the pilot in question is an entry level pilot or an experienced pilot. All pilots must hold an approval to engage in helicopter mustering operations or be undergoing training to obtain that approval. In addition, an experienced pilot is one who has a minimum of 500 flying hours in helicopter mustering operations as pilot in command or acting in command under supervision.
The instrument provides for a pilot to have a minimum number of duty free days in each 16 day period and not to exceed the maximum number of flight hours provided for any of the specified periods. In addition, pilots must not fly, or be required to fly, in a mustering operation if unfit for duty because of fatigue, illness or injury or for any other reason.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (CAO), and CASA later issues a direction that affects the operation of the CAO, the later document is declared to be a disallowable instrument. The instrument affects the operation of CAO 48.1. It is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case because the instrument is a renewal of a previous instrument which was itself a renewal of an instrument prepared at the request of operators engaged in mustering operations. It is available to any operator who notifies CASA in writing that he or she wishes to comply with its limitations but otherwise does not affect operators.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day after registration and expires at the end of April 2016.
[Instrument number CASA 98/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Direction — flight time limitations for helicopter mustering operations
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The instrument sets out a direction adapted to the particular operational requirements of helicopter mustering operations. It mentions the number of hours that a person may fly in any period, the rest periods that must be taken and the circumstances in which a person must not fly or undertake other duties associated with his or her employment.
It only applies to operators who wish to regulate operations in its terms.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority